TMFD and Secretary, Department of Social Services (Social services second review) - [2022] AATA 3432

TMFD and Secretary, Department of Social Services (Social services second review) [2022] AATA 3432 (17 October 2022)
Division:GENERAL DIVISION
File Number: 2021/7536
Re:TMFD
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

Decision
Tribunal:Member D Mitchell
Date:17 October 2022
Place:Brisbane

The Tribunal, pursuant to section 42D of the Administrative Appeals Tribunal Act 1975 (Cth), remits the decision under review to the Respondent for reconsideration, having regard to the reasons set out in the decision, within 45 days of the date of this decision.
..................................[SGD]......................................
Member D Mitchell
Catchwords
SOCIAL SECURITY – disability support pension – DSP – whether medical conditions are fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables during the relevant period – continuing inability to work – adequate consideration of evidence before the Tribunal – decision under review remitted to the Respondent for reconsideration
Legislation
Administrative Appeals Tribunal Act1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services [2015] FCA 1123

REASONS FOR DECISION
Member D Mitchell
17 October 2022
Introduction

On 12 April 2021, TMFD (the Applicant) lodged a claim for Disability Support Pension (DSP).[1] On the Applicant’s claim for DSP form, she listed her disabilities or medical conditions that significantly affect her ability to work to include major depression and PTSD.[2]
[1] Exhibit 1, T Documents, T21, pages 144-146, Disability Support Pension – Online Claim.
[2] Exhibit 1, T Documents , T21, page 144, Disability Support Pension – Online Claim.
In a Disability Support Pension Medical Eligibility Assessment Recommendation report dated 24 April 2021, the assessor, a registered nurse, recommended that the Applicant was medically ineligible for DSP.[3] The assessor provided that:[4]
Although there is evidence of chronic mental health condition noted in medical evidence provided for this claim, assessor notes that there is no current supporting corroborating medical evidence that mental health diagnoses have been confirmed by a clinical psychologist or ap psychiatrist. For this reason, mental health conditions are unable to be considered fully diagnosed for the purpose of this assessment.
[3] Exhibit 1, T Documents , T22, pages 147-148, Disability Support Pension Medical Eligibility Assessment Recommendation.
[4] Exhibit 1, T Documents , T22, pages 147-148, Disability Support Pension Medical Eligibility Assessment Recommendation.
The Applicant’s claim was rejected on 3 May 2021[5] on the basis that the Applicant did not have an impairment rating of 20 points or more under the Impairment Tables.
[5] Exhibit 1, T Documents, T30, pages 234-235, Centrelink Notice: Rejection of DSP Claim.
The Applicant sought review of that decision. On 2 August 2021, an Authorised Review Officer (ARO) affirmed the decision.[6]
[6] Exhibit 1, T Documents, T25, pages 152-160, Authorised Review Officer Decision and Notes.
The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD). On 21 September 2021, the SSCSD affirmed the decision to refuse her claim for DSP.[7]
[7] Exhibit 1, T Documents, T2, pages 3-7, Decision of the SSCSD.
Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application dated 14 October 2021.[8]
[8] Exhibit 1, T Documents, T1, pages 1-2, Application for Review.
The Tribunal notes that since the making of this present application, the Applicant has provided further medical evidence in support of her claim.[9]
[9] Exhibit 2, Supplementary T Documents, ST1-ST7, pages 1-24, various medical certificates and letters.
The Applicant indicated that due to her mental health conditions, she was unable to participate in a Hearing of her application. Consequently, by consent, it was agreed that this matter could be adequately determined in the absence of the parties. The Tribunal agreed to review the reviewable decision in accordance with section 34J of the Administrative Appeals Tribunal Act1975 (Cth). As such, a hearing was not conducted in this matter, the Tribunal’s decision has been reached “on the papers” having considered the documents filed by the parties.
The Tribunal admitted into evidence and considered the following:
·Exhibit 1, T Documents – Section 37 T Documents (pages 1 to 238).
·Exhibit 2, Supplementary T Documents – Supplementary Section 37 ST Documents (pages 1 to 50).
·Exhibit 3, Respondent’s Statement of Facts and Contentions dated 5 August 2022 (pages 1 to 15).
·Exhibit 4, Respondent’s email to the Applicant dated 17 January 2022 providing an outline of what she would need to establish during the Relevant Period in order to be medically qualified for DSP.
PRELIMINARY ISSUES
The role of the Tribunal is to undertake an independent merits review of administrative decisions for which it has jurisdiction to hear.
The Tribunal stands in the shoes of the original decision-maker and considers the matter afresh. The Tribunal considers the evidence before it and is tasked to make the correct and preferable decision in accordance with law.
Pursuant to sections 33(1AA) and (1AB) of the Administrative Appeals Tribunal Act
1975 (Cth) (AAT Act), the parties in a proceeding before the Tribunal must use their best endeavours to assist the Tribunal to make its decision in relation to the proceeding and to fulfil its objectives set out in section 2A of the AAT Act.
Section 2A of the AAT Act provides that in carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a)is accessible; and
(b)is fair, just, economical, informal, quick; and
(c)is proportionate to the importance and complexity of the matter; and
(d)promotes the public trust and confidence in the decision-making of the Tribunal.
The issue to be determined by the Tribunal is whether the Applicant is entitled to receive DSP at the date of her claim or within 13 weeks thereafter.
Upon review of the evidence before it, the Tribunal does not consider that the Respondent has fulfilled the requirements placed upon it by section 33 of the AAT Act. The Tribunal has formed the view that the Respondent has not on this occasion fully engaged with the evidence provided by the Applicant throughout the present proceedings. As such, based on the state of the evidence before it, the Tribunal is not in a position to make a fair and just or correct and preferrable decision. Consequently, pursuant to section 42D of the AAT Act and for the reasons set out below, the Tribunal remits the matter to the Respondent for reconsideration.
The Law
Section 42D of the AAT Act provides that at any stage of a proceeding for review of a decision, the Tribunal may remit the decision to the person who made it for reconsideration of the decision by the person. The person may reconsider the decision and may affirm, vary or set aside the decision and make a new decision in substitution for the decision set aside.[10] The person must reconsider the decision within the specified period.[11] If the person varies the decision or sets it aside and makes a new decision in substitution, the application before the Tribunal is taken to be an application for review of the decision as varied or the new decision as substituted.[12] The Applicant, after considering such a decision, can decide whether to proceed with or withdraw their application for review.[13] If the person affirms or is taken to have affirmed the decision on remittal, the proceedings resumes unless the Applicant withdraws their application.[14]
[10] Section 42D(2) of the AAT Act.
[11] Section 42D(5) and 42D(6) of the AAT Act.
[12] Sections 42D(3)(a) and 42D(4)(a) of the AAT Act.
[13] Sections 42D(3)(b) and 42D(4)(b) of the AAT Act.
[14] Sections 42D(7) and 42D(8) of the AAT Act.
The relevant law in assessing a person’s qualification for DSP is found in the
Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act1999 (Cth) (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination). Following is a summary of the key requirements which relate to the Applicant’s application.
Section 94 of the Act prescribes the criteria that must be met in order to qualify for the payment of DSP. In the present case, the predominate qualification questions before the Tribunal are:
1.does the Applicant have a physical, intellectual or psychiatric impairment;[15]
2.do the Applicant’s impairments attract 20 points or more under the Impairment Tables;[16] and
3.does the Applicant have a continuing inability to work?[17]
[15]    Section 94(1)(a) of the Act.
[16]    Section 94(1)(b) of the Act.
[17]    Section 94(1)(c)(i) of the Act.
Under the Determination, an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent”.[18]
[18] Section 6(3)(a) of the Determination.
The word “permanent” takes on a specific meaning for the purposes of DSP. To be considered permanent for DSP, a condition must be fully diagnosed by an appropriately qualified medical practitioner; be fully treated; be fully stabilised; and be more likely than not, in light of the available evidence, to persist for more than 2 years.[19] As such, a condition could be considered permanent from the perspective of it being life-long but would not meet the definition under the DSP requirements.
[19] Section 6(4) of the Determination.
To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, it must be considered whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years.[20]
[20] Section 6(5) of the Determination.
Relevant to the present application, to be considered fully diagnosed under Table 5 of the Impairment Tables, which relates to Mental Health, requires that the diagnosis of a mental health condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist), with evidence from a psychologist (if the diagnosis has not been made by a psychiatrist).[21]
[21] Table 5 of the Impairment Tables.
A condition is considered to be fully stabilised if:[22]
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[22] Section 6(6) of the Determination.
Reasonable treatment is treatment that is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[23]
[23] Section 6(7) of the Determination.
The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[24] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[25]
[24] Section 6(2) of the Determination.
[25] Section 8(1) of the Determination.
In order to have a continuing inability to work, which is required to satisfy section 94(1)(c) of the Act, a person must meet the criteria of section 94(2), which requires that a person must:
1.if they do not have a severe impairment, have actively participated in a program of support (POS); and
2.be unable to work for at least 15 hours per week independently of a POS within the next 2 years; and
3.be unable to participate in a training activity during the next 2 years or if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a POS within the next 2 years.
A person’s impairment is considered to be a severe impairment if the person’s impairment can be assigned 20 points or more under a single Impairment Table.[26]
[26] Section 94(3B) of the Act.
The Administration Act sets out that qualification for DSP and, therefore, assessment of the relevant impairment ratings is to be determined at the date of claim or, where a person is not qualified on that date but becomes qualified within 13 weeks of lodging the claim, in which case, the start date for DSP is the date the person becomes qualified.[27]
[27] Sections 41 and 42 of the Administration Act; clauses 3 and 4(1) of Schedule 2, Part 2 of the Administration Act.
Both the Tribunal and the Federal Court have concluded that there is a requirement to look at the Applicant’s circumstances as they were, and the evidence that was available at the time of the application for DSP and the 13 weeks which followed it (the Relevant Period). Further, medical and other evidence that is provided outside of the Relevant Period may be considered; however, only insofar as it is referrable to an Applicant’s condition during the Relevant Period.[28]
[28] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[28].
relevant period
The Relevant Period in this matter commenced on 12 April 2021, being the date the Applicant lodged her claim for DSP and ended 13 weeks later on 12 July 2021. The Tribunal is, therefore, limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were during the Relevant Period.
SUBSTANTIVE issues
Based on the evidence before the Tribunal, it is clear that the Applicant had impairments during the Relevant Period and, therefore, has met the requirements of section 94(1)(a) of the Act. This point is not in contention.[29] The Respondent accepts that the Applicant has a mental health condition.[30]
[29] Exhibit 3, Secretary’s Statement of Facts & Contentions, page 7, paragraph 37.
[30] Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 7-9, paragraphs 38-49.
The remaining substantive issues for the Tribunal to consider are:
1.whether, within the Relevant Period, the Applicant’s mental health conditions attracted 20 points or more under the Impairment Tables; and, if so
2.did the Applicant have a continuing inability to work?
contentions OF THE RESPONDENT
The Respondent filed a Statement of Facts and Contentions dated 5 August 2022[31], on the same day it filed Supplementary T Documents.[32] When seeking the Respondent’s views in relation to whether it agreed for this matter to be heard on the papers and requesting that they advise whether they sought to make any further submissions, the Respondent advised the Tribunal that they sought only to make further submissions should the Applicant file any further evidence or make further submissions.[33] The Applicant did not do so and as such, the Respondent has relied on the contentions outlined in the Statement of Facts and Contentions.
[31]    Exhibit 3, Secretary’s Statement of Facts & Contentions.
[32]    Exhibit 2, Supplementary T Documents.
[33]    Email provided by the Respondent on 18 August 2022.
The Respondent provided contentions in relation to whether the Applicant’s mental health conditions were fully diagnosed, fully treated and fully stabilised during the Relevant Period as follows:[34]
[34] Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 7-8, paragraphs 39-46.
39.The Secretary contends that as at the end of the qualification period, the Applicant was diagnosed with adjustment disorder by a psychiatrist but this condition was not fully treated and fully stabilised. Further the Secretary contends that none of the Applicant’s other mental health conditions were diagnosed by an appropriately qualified medical practitioner at the date of claim or by the end of the qualification period as required by Table 5. The Secretary relies on the following evidence in support of that contention:
(a)In her medical certificate dated 22 May 2019, Dr [CP] (GP) (ST13) diagnoses the Applicant with “extreme stress due to workplace bullying” (T12, p80).
(b)In her report dated 21 September 2020, [Dr AB] (Psychologist) (ST14) states “Considering all evidence before me, [the Applicant] is experiencing PTSD and major depressive disorder. My assessment indicates severe symptoms of PTSD combined with severe anxiety and depression. While she may have some of these symptoms before the incidents at work, it is my professional belief that she experienced workplace harassment and the events that followed her dismissal lead to or at least aggravated considerably her PTSD and major depressive disorder.” (T16, 97).
(c)In her medical certificate dated 22 March 2021, [Dr AB] diagnoses the Applicant with PTSD and MDD (T17, 98).
(d)In her medical certificate dated 23 March 2021, Dr [AH] (GP) (ST15) diagnoses the applicant with “stress, depression, possible PTSD” (T18, 99).
40.The Secretary contends that neither Dr [CP], Ms [AB] or Dr [AH] are either a psychiatrist or a clinical psychologist. These practitioners’ respective profiles on the Australian Health Practitioner Regulation Agency (AHPRA) (ST13 – ST15) reveals that none of the above practitioners have specialisations in clinical psychology or are a psychiatrist.
41. In a letter dated 19 May 2021 Dr [LB’s] (psychiatrist) states:
“I am [the Applicant’s] psychiatrist at [WWG] clinic and have performed a diagnostic assessment of [the Applicant]. [The Applicant] presents with symptoms consistent with an adjustment disorder in relation to her ongoing workcover dispute and historical traumatic events she suffered in her former workplace. [The Applicant’s] symptoms include low mood, suicidality, fatigue, low self esteem, loss of appetite, poor concentration and negative ruminative thoughts. Her level of functioning has drastically declined since the workplace incident despite her best efforts to recover; she went from being a high functioning and efficient senior nurse to a woman who sometimes struggles to get out of bed.” (T23, 149).
42.For the purposes of the legislation, the adjustment disorder was not diagnosed at the date of claim. Dr [LB] makes no mention of any treatment.
43.The Secretary contends there is no evidence that by the end of the qualification period the Applicant received optimum treatment for adjustment disorder condition, and there is no evidence about any future treatment and possible functional improvement that might be achieved by optimum treatment.
44.If the Tribunal considered that any of the other mental conditions were fully diagnosed (which is not conceded), in terms of a treatment strategy for the Applicant’s MDD, the Australian and New Zealand College of Psychiatrists Clinical Practice Guidelines for mood disorders management of acute MDD and long term treatment of MDD proposes antidepressant medication and CBT. However there has been no evidence provided to suggest the Applicant has undertaken this treatment or why she would not be suitable for this treatment.
45.In terms of a treatment strategy for the Applicant’s PTSD, the Australian Guidelines for the Prevention and Treatment of Acute Stress Disorder, Posttraumatic Stress Disorder and Complex PTSD recommends pharmacological interventions in addition to psychological therapy such as CPD and EMDR. Again, there has been no evidence provided to suggest the Applicant has undertaken this treatment or why she would not be suitable for this treatment.
46.The Pharmaceutical Benefit Summary Report (ST12, 47) indicates that in the three years prior to making the claim, the Applicant has not purchased any government subsidised medication for her mental health condition. Accordingly, the Secretary contends that the Tribunal cannot be satisfied that the Applicant has engaged in all reasonable and optimal treatment for her conditions. In the absence of evidence why pharmacological intervention in addition to psychological therapy or such treatment is not reasonable for the Applicant’s conditions, the Tribunal cannot be satisfied that her conditions are fully treated and fully stabilised.

In relation to any impairment rating that may be able to be assigned to the Applicant’s mental health condition, the Respondent contended that:[35]
[35] Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 8-9, paragraphs 47-49.
47.If, contrary to the above, the Tribunal considers that the Applicant’s mental health condition was fully diagnosed, fully treated and fully stabilised in the qualification period (which is not conceded), the Secretary contends that the impairment arising from this condition attracts an impairment rating of 0 points under Table 5. In support of this contention the Secretary relies on the following evidence:
(a)In the medical certificate dated 22 March 2021, [Dr AB] (psychologist) reports that the Applicant’s symptoms include “Reliving experiences such as intrusive thoughts and hyper vigilant & startled. Low mood, sleep disturbances, lack of motivation and altered sense of self” (T17, 98).
(b)In the medical certificate dated 23 March 2021, Dr [AH] (GP) reports that the Applicant’s symptoms include “low mood, poor sleep, tearful, low appetite” (T18, 99).
(c)The letter from Dr [LB] (psychiatrist), dated 19 May 2021 states that the Applicant’s symptoms include: “low mood, suicidality, fatigue, low self esteem, loss of appetite, poor concentration and negative ruminative thoughts” (T23, 149).
(d)The medical certificate from Dr [AH], dated 26 October 2021 which states that the Applicant’s symptoms include “Low mood, poor concentration and motivation, tearfulness, suicidal ideation.” (T26, 161).
48. In her letter dated 20 January 2022, [Dr AB] states:
(a)[The Applicant] has struggled to engage socially, trust others, participate in meaningful social spaces and establish new relationships. She holds to one son, one support service and a couple of people from her past often bringing strain to those relationships. Even though she is a woman of faith, she struggles to participate in her religious community.
(b)[The Applicant] asks support services for assistance with filling simple forms, writing documents and even to plan tasks that are not part of her daily routine. She reports daily triggers.
(c)[The Applicant] struggles to control her behaviours being controlled in her interactions by her trauma triggers and her intrusive thoughts. [The Applicant] has limited insight and ability to control the symptoms of her conditions, with direct impact into her functionality.
(d)[The Applicant] is unable to consider engaging in work or training. Triggered by the idea of returning to work similar to the one she performed previously and not functional enough to work in a different field. Low motivation and interest in engaging with others. Defensive/aggressive in engagement with strangers in new social situations.(ST5, 15).
49.The Secretary notes this report is dated outside of the qualification period. In the circumstances, the Secretary considers that only the contemporaneous medical evidence should be considered when determining the appropriate Table 5 impairment rating.
CONSIDERATION
The evidence before the Tribunal indicates that the Applicant has been experiencing mental health conditions from at least 2009.[36] The Applicant has a reported history of trauma throughout her life, particularly while living in a refugee camp during the war in Africa. She has lost two daughters, her first husband and many other extended family members in the war. She has family that remain in the refugee camp and is haunted by traumatic memories.[37]
[36] Exhibit 1, T Documents, T5, pages 53-64, Job Capacity Assessment Report.
[37] Exhibit 1, T Documents, T5, page 62, Job Capacity Assessment Report.
Further, the evidence of the Applicant’s treating psychologist, [Dr AB], psychologist, outlines that she has been treating the Applicant since 2018 in relation to the worsening of her mental health as a result of a workplace incident.[38]
[38] Exhibit 1, T Documents, T16, pages 94-97, Phycological Evaluation by [Dr AB]; T24, pages 150-151, Letter from [Dr AB] and Exhibit 2, Supplementary T Documents, ST1, pages 1-5 and ST7, pages 22-24, Letters from [Dr AB].
The issue before the Tribunal in regards to the Applicant’s present matter is whether or not she was eligible to be granted DSP at the date of her claim or at any time during the Relevant Period, being 12 April 2021 to 12 July 2021.
Based on the medical evidence before the Tribunal, there is no doubt that the Applicant suffered from mental health conditions during the Relevant Period. The questions before the Tribunal are whether those mental health conditions were fully diagnosed, fully treated and fully stabilised during the Relevant Period, and if so, what was the resulting functional impairment during the Relevant Period. The Tribunal must also consider the Applicant’s continuing inability to work.
As set out above in the section headed “The Law”, to establish that the requirements to be granted DSP are met, the Tribunal must have regard not only to the Applicant’s self-reported symptoms, but also to the medical evidence presented as it relates to the Relevant Period.
There are a number of medical certificates, letters and reports before this Tribunal, which are contained in the Supplementary T Documents[39] and were not before the original decision maker, ARO or SSCSD. In particular, it is clear that [Dr AB] sought to address the DSP eligibility requirements as set out by the Respondent in their email to the Applicant.[40] [Dr AB] diagnosed the Applicant with PTSD and major depressive disorder. She sought review of her diagnosis by Dr [AR], clinical psychologist. In the letter dated 20 January 2022, [Dr AB] addressed the Applicant’s circumstances with regard to the Relevant Period and DSP eligibility requirements.[41]
[39]    Exhibit 2, Supplementary T Documents.
[40]    Exhibit 4, Email from the Respondent to the Applicant dated 17 January 2022 providing an outline of what she would need to establish during the Relevant Period in order to be medically qualified for DSP.
[41]    Exhibit 2, Supplementary T Documents, ST5, pages 15-17, Letter from [Dr AB].
The Tribunal notes that the Respondent did not consider the report of Dr [AR] in making its contentions (as set out above). Further, the Respondent referred to the letter of

[Dr AB] dated 20 January 2022 being provided outside the Relevant Period, however, did not address the direct referencing by [Dr AB] to the Relevant Period.
The Tribunal notes that while the Respondent accepted[42] the diagnosis of adjustment disorder made by Dr [LB], psychiatrist in a letter dated 19 May 2021,[43] it is unclear what background information Dr [LB] was provided with to assist in the making of that diagnosis.
[42] Exhibit 3, Secretary’s Statement of Facts & Contentions, page 7, paragraph 41.
[43] Exhibit 1, T Documents, T23, page 49, Letter from Dr [LB].
In a report dated 7 December 2021[44] and a Centrelink Medical Certificate dated

21 December 2021,[45] Dr [AR], having been provided with detailed collateral information from the Applicant’s treating practitioners and having interviewed and assessed the Applicant, diagnosed the Applicant with PTSD and major depressive disorder with a date of onset of sometime in 2018.
[44] Exhibit 2, Supplementary T Documents, ST2, pages 6-9, Letter from Dr [AR].
[45] Exhibit 2, Supplementary T Documents, ST3, pages 10-13, Medical certificate of Dr [AR].
Both [Dr AB] and Dr [AR] were aware and made reference to the Applicant having declined to engage with medication. The Respondent made reference in their contentions to Guidelines for treatment of the diagnosed conditions making recommendations with regards to the use of medication.[46] The Respondent, however, did not engage with the fact that both [Dr AB] and Dr [AR] indicated that the Applicant’s mental health conditions were fully treated and fully stabilised despite her having not engaged with pharmaceutical treatment.
[46] Exhibit 3, Secretary’s Statement of Facts & Contentions, page 8, paragraphs 42-46.
[Dr AB] has addressed the requirements of Table 5 of the Impairment Tables which deals with mental health function and has indicated based on her assessment of the Applicant over a period of 3 years of treatment that, during the Relevant Period and before, the Applicant met the requirements to be assigned 20 points on Table 5 of the Impairment Tables. [Dr AB] had consistently outlined functional impairments caused by the Applicant’s mental health conditions, however, drew them altogether in her letter of

20 January 2022.[47]
[47] Exhibit 2, Supplementary T Documents, ST5, pages 15-17, Letter from Dr [AB].
[Dr AB] also opined that during the Relevant Period and beyond, the Applicant was unable to undertake work for 15 hours or more per week.[48] The Tribunal notes that this is contrary to the opinion provided in the Employment Services Assessment Report dated

16 August 2022.[49] However, it is unclear whether the assessor had regard to the reports provided by [Dr AB] as the Applicant’s treating psychologist.
[48] Exhibit 2, Supplementary T Documents, ST5, page 17, Letter from Dr [AB].
[49] Exhibit 2, Supplementary T Documents, ST8, pages 25-31, Employment Services Assessment Report.
In considering the Respondent’s contentions set out in paragraph 34 above, the Tribunal considers that the Respondent did not adequately engage with the evidence contained in the Supplementary T Documents. Consequently, the Tribunal considers that it is not in a position to, based on the current state of the evidence and submissions before it, make a fair and just or correct and preferable decision. As such, the Tribunal considers it is reasonable for it to exercise its power under section 42D of the AAT Act to remit the matter to the Respondent for reconsideration.[50]
[50] The Tribunal notes that it is ultimately the original decision of the Respondent that is under review and therefore the Respondent is the appropriate person as the decision maker for the Tribunal to remit the matter back to for reconsideration.
In remitting the matter to the Respondent and noting the Applicant’s vulnerability, the Tribunal considers that it would be preferrable and reasonable for the Respondent to have the Applicant’s matter fully assessed by its Health Professional Advisory Unit (HPAU). Both Dr [AB][51] and Dr [AR][52] provided an invitation to be contacted for further information. The Tribunal does not instigate contact or make contact with treatment professionals or witnesses outside of a Hearing. In the Tribunal’s experience, it is not uncommon for the HPAU to consider all of the documentary evidence available and engage with health care providers to seek further information when required.
[51] Exhibit 2, Supplementary T Documents, ST5, page 17, Letter from Dr [AB].
[52] Exhibit 2, Supplementary T Documents,ST2, page 9, Letter from Dr [AB].
DECISION
For the reasons set out above, pursuant to section 42D of the AAT Act, the Tribunal remits the present application to the Respondent for reconsideration, with a recommendation that it seeks an opinion from the HPAU. The Tribunal directs that the Respondent reconsider the decision to refuse the Applicant’s claim for DSP made on 12 April 2021 on or before 45 days from the date of this decision.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

.................................[SGD].......................................
Associate
Dated: 17 October 2022

Date of hearing: Heard on the papers, 28 September 2022

Applicant: TMFD

Solicitors for the Respondent: Ms TinYan Wong
Services Australia

Date of hearing:	Heard on the papers, 28 September 2022
Applicant:	TMFD
Solicitors for the Respondent:	Ms TinYan Wong Services Australia